Tort – Defamation – Elected Official Immunity

The trial court correctly dismissed the defamation claims of four plaintiffs against defendant, the mayor of the city of Taylor.

Under MCL 691.1407(5), defendant has absolute immunity from plaintiffs’ claims because he is an elected official and made the statements while acting within the scope of his authority.

Background

Plaintiffs were at an apartment complex where a fatal shooting occurred. All were arrested. One allegedly confessed, another was also charged. Subsequent investigation revealed that none of the plaintiffs was involved.

After the charges were dismissed, two of the plaintiffs demanded that the city apologize. A television reporter asked defendant to comment.

“Defendant stated: ‘It is my understanding that … those kids were in the wrong place doing the wrong thing with the wrong people at the wrong time and the wrongs all involve guns and gangs and so we[']re not going to apologize for that.

“‘If anybody deserves an apology, it’s the victim’s family, not the kids, again, whether they did the shooting or not, they had no business being in that place at that time hanging out with kids that are carrying guns and doing things.’

“Defendant stated further: ‘They [the police] had information that someone was the shooter, they acted on that information that someone allegedly confessed, um that someone was charged, that someone was subsequently cleared because the police department came to conclude on their own that two plus two plus two did not add up to six, they continued to investigate and they dropped the charges against the young man. ‘

“Defendant’s statements were subsequently aired during a television news broadcast. Plaintiffs thereafter brought separate actions, each alleging that defendant’s statements to the television news reporter were defamatory.”

The cases were consolidated. The trial court ruled that defendant “was absolutely immune from liability pursuant to MCL 691.1407(5) because the statements were made within the scope of his executive authority as mayor.”

We affirm.

Acting Within Scope Of Authority

“MCL 691.1407(5) provides: ‘A judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority.’

“The parties agree that the mayor of a city is the highest elective official at the city government level and therefore qualifies for absolute immunity as prescribed by this statute.

“Plaintiffs argue, however, that defendant was not acting within the scope of his executive authority when he made the challenged statements to the television news reporter.

“They contend that the statements were made in defendant’s capacity as a private citizen, not as mayor of the city.

“They assert that the city council’s refusal to address the requests for an apology indicates that the requests were not viewed as a concern of city government, and thus not a concern of defendant in his capacity as mayor. We disagree.

“The statements were made in an interview following a city council meeting. They were made in response to questions that were directed at defendant, the mayor of the city.

“The questions concerned the Taylor Police Department’s investigation of a crime and its treatment of suspects.

“Defendant was responding to accusations that the police department unjustly pursued charges against innocent persons.

“Defendant was clearly acting within the scope of his executive authority as mayor in responding to questions about the integrity and motives of the police investigation, and whether plaintiffs were entitled to an apology from the city. See American Transmissions, Inc v Attorney General, 454 Mich 135, 143-144; 560 NW2d 50 (1997) … .

“Although plaintiffs question defendant’s motives in making the statements, there is no motivation or intent exception to the absolute immunity conferred by sec. 1407(5).”

No Ultra Vires Act

“Plaintiffs argue that MCL 691.1407(5) does not provide immunity for defendant’s statements because the statements impute the commission of a criminal offense, thereby violating MCL 600.2911. …

“Plaintiffs contend that because defendant’s comments violated MCL 600.2911, they necessarily constituted an ultra vires act falling outside the scope of his executive authority. We disagree.

“The Court made clear that the immunity afforded by MCL 691.1407(1) extends ‘to all governmental agencies for all tort liability whenever they are engaged in the exercise or discharge of a governmental function.’ …

“The Court explained that ‘ultra vires activity is not activity that a governmental agency performs in an unauthorized manner. Instead, it is activity that the governmental agency lacks legal authority to perform in any manner.’ …

“[R]egardless of how defendant’s statements may be characterized or why defendant decided to make the challenged remarks, defendant was absolutely immune from tort liability pursuant to MCL 691.1407(5).

“The trial court did not err by granting defendant’s motion for summary disposition.”